The following post comes from Rebecca Cusey, a third-year law student at Antonin Scalia Law School, George Mason University, and a movie critic at The Federalist.

By Rebecca Cusey

The fair use doctrine has expanded far beyond its purpose, according to an amicus brief filed this past Friday on behalf of 13 law professors in Oracle v. Google, a copyright case currently before the Federal Circuit. Scalia Law alumnae Antigone Peyton and Jennifer Aktins of Cloudigy Law worked in conjunction with CPIP Senior Scholar Sandra Aistars to file the brief, and I had the pleasure of helping them draft it.

While there are several related decisions for the court to make, the primary issue before the Federal Circuit is whether Google’s use of Oracle’s software code, known as an API, is excused by the fair use defense. This case is long and complex, as would be expected from two software giants battling over the use of important code. Phones don’t run themselves, after all, and there’s a huge, lucrative market.

In 2014, the Federal Circuit held that Oracle’s API code was copyrightable because it contained protectable, original expression. The court reasoned that the software code resembled a taxonomy instead of a system or method of operation, which would be unprotectable. The issue of functionality versus creativity was addressed, and the court found that the creative code in question was not precluded from copyright protection even though it was also functional.

The Federal Circuit remanded the case to the district court on the issue of whether the use of the API code was excused by the fair use defense. A jury found in May of 2016 that fair use did indeed excuse Google’s use of the protected code in its phones. Oracle now appeals this fair use finding to the Federal Circuit.

The amicus brief argues that the fair use defense does not cover Google’s use of the software code. The fair use doctrine was intended to balance the rights of creators to profit from and control their work with the public interest to be derived from critique, scholarship, and parody. In this case, there is no critique. Rather, Google seeks to sell a product using code it could have licensed but did not.

It matters, as all intellectual property matters, because the more we allow the fair use defense to expand and take money off of the table for creators, the more it destroys their incentive for creating original content in the first place. Why would a person or a company invest time, effort, and money in writing a song, developing a drug, or coding a program if someone else could simply take that song, drug, or code and sell it as their own? Fair use doesn’t excuse that, nor should it.

Although software code is complex and difficult to understand for the average person, there are no special rules in this area of copyright law, nor should there be. Just as copying a portion of a song and inserting it into one’s own song can be infringement, so too can taking a portion of code and selling it as part of one’s own product. Just as it takes creativity to use words to create a book, so too it takes creativity to create new and exciting code.

It may be obtuse to many people, but coding is a highly creative endeavor that brings astonishing and exciting products to market, products that have shaped and improved the world around us. It is in the interest of everyone, both software coders and society at large, that the incentive created by copyright to produce such advancement remains strong.